While it might appear that the issue of whether the 2010 Census should count separately undocumented persons is something that just came up, in fact it is a perennial issue of long history that often is not well understood. Clarity is required to assess the reasonableness of this requirement and therefore how to proceed on the issue.
Despite Sen. David Vitter’s recent taking up of this cause, it’s been around a long time and others of his colleagues have been there before. As far back as prior to the 1980 census it had become part of the public policy debate. In 1988, members of Congress wanted to pass legislation requiring a separate count on all forms (since the middle of the 20th century only the “long form” included the question, which is sent to a smaller portion of households). They also threatened to file suit, but neither went anywhere. A number of academic studies came out in the 1990s and this decade estimating the impact of illegal immigrants on apportionment. In 2006, Sen. Conrad Burns raised the issue but was rebuffed. A number of stories early in this year appeared about it.
Why Vitter and others came to start offering amendments to bills that would deny funding for Census activities at such a late stage in the game, when they might have been more effective months ago and prevented Democrat counterparts such as Louisiana’s Mary Landrieu from using as an excuse the process was too far along and would cost millions of more dollars, is a mystery. Also complicating his fight is that in all likelihood it is unconstitutional. Some argue in the context of what the earliest Congress is believed to have understood that created the operating rules for the Census could be interpreted to mean only citizens could be counted, but it is a bit convoluted of an argument. The Fourteenth Amendment seems particularly damaging to that cause, when it pretty directly mandates that all “persons” be counted.
Nevertheless, having some kind of separate question even on the short form would be beneficial. If opponents do sue over the constitutionality of the undifferentiated count and actually succeed, the data would be already in the correct format to do, or redo, Congressional reapportionment. However, such an outcome seems unlikely given on the U.S. Supreme Court the four justices who are strict constructionists – Chief Justice John Roberts, and Associate Justices Samuel Alito, Antonin Scalia, and Clarence Thomas – would be hard pressed to take such an activist interpretation of the document and all they would need is one more vote from more liberal judges some of whom secretly politically probably prefer the effort to fail.
Were that the case, only a constitutional amendment would suffice. Yet that could come prior to 2020, and the data would stand ready to fit. And for the future, a law such as that proposed two decades ago should be put into place so data could be ready for changes that could trigger and intra-Census reapportionment.
It will cost money to redo, but Democrats have blown hundreds of times the figure this year alone on spending that serves no real purpose and/or does not solve public policy problems. This relatively small amount accomplishes something far greater, ensuring that a cherished feature of our system of government reflect correctly intentions behind its founding, whether updated. Opposition to it therefore remains quizzical, and makes one wonder whether opponents like Landrieu believe in maintaining the system’s integrity.
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